Hon'ble JAIN, J.—This intra-court appeal is directed against order of Single Bench dated 5.8.1986, whereby S.B. Civil First Appeal No.211/1972 filed by plaintiff/appellant has been dismissed in view of finding on Issue No.5. 2. Facts of the case, in brief, are that on 26th October, 1963, the plaintiff/appellant filed a suit for specific performance in the Court of District Judge, Jaipur City against defendants Nos. 1 to 8, wherein was pleaded that Seth Shri Ghanshyam Das Ji Birla visited Jaipur in August, 1959 and on that occasion inspired by the feelings that Municipal Council, Jaipur had no Town Hall, he offered to donate a good amount of Rs.10 Lacs for the construction of the same, provided Municipal Council, Jaipur could make available a suitable site at a prominent place in the city of Jaipur for its due construction. With the above aim, the Administrator, Municipal Council, Jaipur and Chairman, Urban Improvement Board, Jaipur approved the property belonging to Seth Hamir Mal Golecha – defendant no.1, situated on Sir Mirza Ismail Road, Jaipur, just opposite Government Hostel, Jaipur, as appropriate site for the proposed town hall. This property consisted of the plot of land with construction over it bounded on all sides by compound walls. The land was known as Aaloo Factory. The particulars of the property were described in Schedule-A appended with the plaint. The measurement of the property was described as 440 ft. towards east-west and 397 ft. towards north to south. The said property was originally belonging to Raja Govind Singh Ji S/o Raja Sawai Madho Singh Ji of Jaipur, but by sale-deed dated 6th March, 1959 registered on 2nd December, 1959, it was purchased by defendant No.1 Seth Hamir Mal Golecha. The then Administrator entered into an agreement with defendant No.1 for the purchase of said property for a consideration of Rs. 1,57,000/- and the cost of Malwa of the construction (structure) on the said land at the value to be assessed by the PWD, Jaipur. But it was stipulated that in no case cost of Malwa will be more than Rs.23,000/-. Accordingly, an agreement was executed on 29th October, 1960 by defendant No.1 in favour of Municipal Council, Jaipur City through its Administrator. The terms and conditions of the agreement (Ex.1) were incorporated in para 4 of the plaint, which are reproduced as under:- “(i) That the price of the land mutually settled was at Rs.1,57,000/-. Accordingly, an agreement was executed on 29th October, 1960 by defendant No.1 in favour of Municipal Council, Jaipur City through its Administrator. The terms and conditions of the agreement (Ex.1) were incorporated in para 4 of the plaint, which are reproduced as under:- “(i) That the price of the land mutually settled was at Rs.1,57,000/-. Out of which the Municipal Council, shall pay Rs. 30,000/- as advance towards the sale price; (ii) That the price of the Malba of the constructions over the land shall be paid according to the value of the Malba which will be assessed by the P.W.D., Jaipur and this assessed value shall be binding on the parties. But it shall not in any case be paid more than rupees 23,000/-. (iii) That the seller shall execute the sale deed in favour of the Municipal Council, within the period of one and a half months from 29th October, 1960 – the date of the agreement for sale; (iv) That the expenses for the stamps and registration of the sale deed shall be borne by the purchaser; (v) That if the seller will fail to get the sale deed executed and presented before the Sub Registrar for registration within the stipula-ted period, the seller shall be liable to refund the advance amount and in addition he shall pay Rs.25,000/- as liquidated damages, which amount having been pre-estimated as reasonable compensation for the breach of the contract payable to the Municipal Council; (vi) That the balance of the sale price will be paid by the Municipal Council to the seller at the time of registration of the sale deed. In case the Municipal Council, failed to make the payment of the balance amount of the sale price at the time of registration, the advance amount shall stand forfeited;” 3. The plaintiff paid a sum of Rs. 30,000/- through cheque on 29th October, 1960 as agreed. The remaining amount was to be paid within 1½ months. However, defendant No.1 approached the Administrator, Municipal Council on 16th December, 1960 and prayed that he may be paid Rs.30,000/- more as advance against the balance amount of the sale price and also to extend the time for the execution and registration of the sale deed by further one month. The remaining amount was to be paid within 1½ months. However, defendant No.1 approached the Administrator, Municipal Council on 16th December, 1960 and prayed that he may be paid Rs.30,000/- more as advance against the balance amount of the sale price and also to extend the time for the execution and registration of the sale deed by further one month. The Administrator allowed the prayer of defendant No.1 and further made payment of Rs.30,000/- on 16.12.1960 through cheque and also agreed to grant required extension in time. The defendant No.1 took no steps to have the sale deed prepared and duly executed for presentation before the Sub Registrar for registration and under one plea or the other, kept postponing the matter and continued demanding more and more advance payments from time to time. Although the plaintiff under the terms settled, was not bound to make the further advance payments, reposing full confidence in the assurances given and bonafides of defendant No.1 and under the hope that the sale deed will be executed and got registered by the defendant No.1 continued to make payments as and when demanded. The details of subsequent payments of Rs. 1,14,500/- in addition to Rs.60,000/- as mentioned above were given in Para 8 of the plaint, which are reproduced as under:- 1. Rs. 25,000/- paid on 28.2.61 by the cheque No. 805525 of the State Bank of Jaipur. 2. Rs. 35,000/- paid on 22.3.61 by the Cheque No. 805571 of the State Bank of Jaipur. 3. Rs. 10,000/- paid on 13.7.61 by the Cheque No. 132292 of the State Bank of Jaipur 4. Rs. 9,500/- paid on 18.7.61 by the cheque No. 132297 of the State Bank of Jaipur. 5. Rs. 20,000/- paid on 12.10.61 by the Cheque No. 0093 of the State Bank of Jaipur 6. Rs. 15,000/- paid on 28.10.61 by the Cheque No. 00962 of the State Bank of Jaipur Rs. 1,14,500/- Total The plaintiff paid a sum of Rs.1,74,500/-. 4. It was also pleaded in the plaint that the plaintiff agreed to pay the entire amount of Rs. 23,000/- towards cost of Malba i.e. debris. Thus, the total amount, which was required to be paid was Rs.1,57,000/- + Rs.23,000/- and out of which plaintiff paid Rs.1,74,500/- through cheques on different dates, as per details mentioned above. The only petty balance of Rs.5,500/- remained payable to the defendant No.1. 23,000/- towards cost of Malba i.e. debris. Thus, the total amount, which was required to be paid was Rs.1,57,000/- + Rs.23,000/- and out of which plaintiff paid Rs.1,74,500/- through cheques on different dates, as per details mentioned above. The only petty balance of Rs.5,500/- remained payable to the defendant No.1. The plaintiff had fulfilled his part of the contract and was always ready and willing to perform his part of contract. But defendant was avoiding the execution of sale deed. The plaintiff called the defendant No.1 to come and approve the draft of the sale deed and after receiving stamp charges to get the sale deed prepared and executed, but defendant No.1 never cared to perform his part of the contract. The plaintiff got the draft of the sale deed approved and finalised and sent the same vide letter dated 28.12.1961 to defendant with a request to attend the office of the plaintiff on 2nd January, 1962 to execute the sale deed and to get the same registered. However, for one reason or the other, the sale deed was not executed by defendant No.1. The plaintiff thereafter came to know from reliable sources that defendant No.1 has sold the property in question to defendant No.8 Shri Bhagwan Dass Mangal on 16.7.1963 and got the sale deed registered in his favour on 17.7.1963 for a consideration of Rs. 70,000/- only. The subsequent transfer made by defendant in favour of defendant No.8 is collusive one and has been executed to defeat and defraud the rights of the plaintiff. The defendant No.1 had no right whatsoever to dispose off the disputed property to defendant No.8. The property was originally purchased by defendant No.1 for Rs.1,30,000/- from Raja Govind Singh Ji in March, 1959. It was agreed to be sold to plaintiff in October, 1960 for a sum of Rs.1,80,000/-. Therefore, under no probabilities it could have been sold for a meagre amount of Rs. 70,000/- in July, 1963 in favour of defendant No.8 Bhagwan Dass. The same is false and fictitious document and in fact no amount has been paid by defendant No.8. The Plaintiff further pleaded that defendant No.2 is the son and defendants Nos. 3 to 7 are grand sons of defendant No.1. 70,000/- in July, 1963 in favour of defendant No.8 Bhagwan Dass. The same is false and fictitious document and in fact no amount has been paid by defendant No.8. The Plaintiff further pleaded that defendant No.2 is the son and defendants Nos. 3 to 7 are grand sons of defendant No.1. The cause of action for the suit arose on 29th October, 1960 when the agreement of sale was executed and on subsequent dates when advance payments were demanded and paid and on 28th February, 1962 when notice was given and on 22nd June, 1962 a letter was sent and ultimately on 10th September, 1963 when plaintiff came to know of the subsequent sale deed and on 12th September, 1963 when the copy of the sale deed was received. The plaintiff, therefore, prayed that suit of the plaintiff be decreed against the defendants and a decree for specific performance of the contract to sell the property described in paras No.2 and 5 of the plaint and in the schedule attached be passed in favour of the plaintiff and against defendants and it may be declared that the sale deed dated 16th July, 1963 executed by defendants Nos. 1 to 7 in favour of defendant No.8 and registered on 17th July, 1963 is null and void to the extent of plaintiff's rights in the disputed property. It was further prayed that defendants be directed to execute a sale deed and get it registered in favour of plaintiff of the said property within a period to be fixed by the court and at the time of registration or earlier, the balance amount of Rs. 5,500/- remaining payable to defendant No.1 be paid to the persons entitled, failing which the said sale deed in favour of the plaintiff be executed and registered by the court on behalf of the defendants. In alternative, it was also prayed that a decree for refund of Rs.1,74,500/- plus Rs.25,000/- as liquidated damages for breach of contract be awarded with interest at 6% per annum till realisation. 5. Defendant No.3 and defendant No.8 only filed their separate written statements. The other defendants did not file any written statement on their behalf. The defendant No. 1 expired on 18.1.1964. The ex parte proceedings were drawn against defendants Nos. 5 & 6 on 5.9.1967, against defendant No. 2 and 7 on 6.10.1967 and against defendant No. 4 on 8.11.1967. 6. Defendant No.3 and defendant No.8 only filed their separate written statements. The other defendants did not file any written statement on their behalf. The defendant No. 1 expired on 18.1.1964. The ex parte proceedings were drawn against defendants Nos. 5 & 6 on 5.9.1967, against defendant No. 2 and 7 on 6.10.1967 and against defendant No. 4 on 8.11.1967. 6. The defendant No.3 Heera Chand in his written statement pleaded that no such agreement or contract was entered into between plaintiff and defendant No.1. Defendant No.1 Shri Hamir Mal Golecha never executed any agreement of sale in favour of Municipal Council, Jaipur. The plaintiff never fulfilled his part of the contract and he was never willing to perform his part of the contract. The defendants had no authority or right to enter into any agreement of sale deed as alleged by the plaintiff. In reply to para 16 of the plaint, it was pleaded that it is admitted that the defendant No.8 did not pay any amount to the defendant Nos. 1 to 7 in lieu of the sale deed which was false, fictitious, bogus and null and void. The sale deed was without any consideration and is thus void. It was averred that defendant No.2 is the son of defendant No.1 and defendants Nos. 3 to 7 are his grand sons. In the additional plea, it was also averred that suit property was purchased by defendant No.1 from the funds of the joint family consisting defendant Nos. 1 to 7 and his great grand sons and as such the suit property is ancestral property and the defendants had no right either to enter into any agreement to dispose it off or to execute any sale deed. It was, therefore, prayed that suit of the plaintiff be dismissed with cost. 7. Defendant No.8 Bhagwan Dass Mangal in his separate written statement pleaded that the property in dispute was purchased by defendant No.1 Seth Hamir Mal Golecha as per registered sale deed dated 6th March, 1959 and the same was sold to defendant No.8. It was pleaded that defendant No.8 is the bona fide purchaser for value without notice of the alleged agreement. It was pleaded that defendant No.8 is the bona fide purchaser for value without notice of the alleged agreement. It was averred that the plaintiff did not perform his part of the contract within the fixed or reasonable period of time and did not perform his part of the work in the matter of preparation of the sale deed and its registration. It was also pleaded that there was no collusion between defendants Nos. 1 and 8 and the sale deed in favour of defendant No.8 was not executed to defeat or defraud the plaintiff. It was also pleaded that Shri Hamir Mal was the Karta of the family and the said property was a joint Hindu family property consisting of defendant Nos. 1 to 7 and defendant No.1 alone could not have sold the property under the circumstances. It was also pleaded that if there was really any contract of sale with the plaintiff, he should have specifically enforced it promptly, either privately or through the court and the plaintiff by its silence and latches kept the stranger like defendant No.8 in dark and led them to believe that the property was open for purchase. In the additional pleas, the number of objections were taken including that the alleged contract of sale has not been executed in accordance with the provisions of Section 80 of the Rajasthan Municipalities Act and same is invalid and void and the same is not enforceable in law. 8. The learned trial court, on the basis of pleadings of the parties framed 12 issues, which are as under:- “(1) Whether the suit property was purchased by Seth Hamir Mal Golecha from the funds of the joint Hindu Family property? (2) Whether Seth Hamir Mal Golecha entered into an agreement of sale of the suit property and executed the same in favour of the plaintiff for a consideration of Rs.180000/- as mentioned in paras No. 3 and 4 of the plaint? (3) Whether the plaintiff made payments to the tune of Rs. 1,74,500/- to Seth Hamir Mal as mentioned in paras No.4(1), 8 and 7 of the plaint? (4) Whether defendant No. 8 is a bonafide purchase for value without notice and if it so, what is its effect on the suit? (3) Whether the plaintiff made payments to the tune of Rs. 1,74,500/- to Seth Hamir Mal as mentioned in paras No.4(1), 8 and 7 of the plaint? (4) Whether defendant No. 8 is a bonafide purchase for value without notice and if it so, what is its effect on the suit? (5) If issue No. 2 is decided in favour of the plaintiff, the agreement is not enforceable at law, because it is uncertain, incomplete and lacks mutuality and also because it has not been entered in accordance with the provisions of section 80 of the Rajasthan Municipal Act? (6) Whether the plaintiff did not perform the part of his contract within fixed and reasonable time and if it is so what is effect on the suit? (7) Whether the parties to the agreement of sale between Seth Hamir Mal Golecha and Municipal Council had agreed to liquidation of damages to a fixed amount and therefore the plaintiff is not entitled to specific performance of the contract? (8) Whether the plaintiff is not entitled to specific performance of the contract for reasons mentioned in para No.13 of the written statement of defendant No. 8? (9) Whether the plaintiff did not obtain the permission from the Government for the purchase of the suit property and, therefore, the suit is not maintainable? (10) Whether Seth Hamir Mal Golecha was Karta of the joint Hindu Family and he had no right to enter into any agreement of sale of the suit property as it was a joint Hindu Family property? (11) Whether the defendants are entitled to get special costs? (12) To what relief the plaintiff is entitled to?” 9. In support of the case, plaintiff examined P.W.1 Himmat Singh, P.W.2 Devi Shanker, P.W.3 Pashupatinath, P.W.4 A.K. Jain, P.W.5 Mukti Lal Modi, P.W.6 Shiv Raj Jain, P.W.7, Murli Manohar, P.W.8 Sunder Lal Gaur, P.W.9 Hemdutt and P.W.10 Hari Das and also led documentary evidence. 10. The defendant No.3 did not lead any evidence in support of his case. 11. Defendant No.8 examined D.W.1 Durga Prasad, D.W.2 Bhagwan Das (himself). 12. Learned trial court after considering submissions of parties and examining the record of the case decided Issue No.1; whether the suit property was purchased by Seth Hamir Mal Golecha from the funds of joint Hindu Family property; was decided against the defendants as none out of defendants Nos. 11. Defendant No.8 examined D.W.1 Durga Prasad, D.W.2 Bhagwan Das (himself). 12. Learned trial court after considering submissions of parties and examining the record of the case decided Issue No.1; whether the suit property was purchased by Seth Hamir Mal Golecha from the funds of joint Hindu Family property; was decided against the defendants as none out of defendants Nos. 1 to 7 appeared in evidence. Issue No.2 was relating to agreement of sale Ex.1 dated 29.10.1960 and it was held that contract (Ex.1) is proved. Issue No.3 was relating to payment of Rs.1,74,500/- by plaintiff and the same was found to be proved. Issue No.4 was decided against defendant No.8 and it was held that defendant No.8 is not a bonafide purchaser for value without notice. Issue No.5 was decided against defendants and it was held that Ex.1 agreement is a valid contract and it is enforceable. Issue No.6 was also decided against defendants and it was held that plaintiff was ready and willing to perform his part of the contract. Issues Nos. 8, 9 & 10 were also decided against defendants. Although, trial court recorded a finding that Ex.1 agreement of sale was executed and it is proved and it is a valid agreement and payment of Rs.1,74,500/- has been made by plaintiff, plaintiff was ready and willing to perform part of the contract, the defendant No.8 was not a bonafide purchaser and sale deed executed in favour of defendant No.8 is illegal and void ab initio, but in view of finding on Issue No.7 that agreement contains an alternative option for defendants to pay the liquidated damages and thus plaintiff is not entitled to a decree of specific performance, decided the suit that plaintiff is not entitled for specific performance of the contract. He is entitled only for refund of sale price paid by him to defendant No.1 plus Rs. 25,000/- as liquidated damages. Thus, the trial court decreed the plaintiff's suit for Rs.1,99,500/- (Rs. 1,74,500 plus Rs.25,000/-) against the defendant with cost vide its judgment dated 30th September, 1973. Being aggrieved with the judgment and decree passed by trial court, the plaintiff preferred regular first appeal before Single Bench. 13. It is relevant to mention that neither defendant No.3 nor defendant No.8 preferred any appeal or cross objections against the findings of the trial court in respect of Issues Nos. 1 to 6 and Issues Nos. Being aggrieved with the judgment and decree passed by trial court, the plaintiff preferred regular first appeal before Single Bench. 13. It is relevant to mention that neither defendant No.3 nor defendant No.8 preferred any appeal or cross objections against the findings of the trial court in respect of Issues Nos. 1 to 6 and Issues Nos. 8 to 12. 14. So far as first appeal before Single Bench, preferred by plaintiff is concerned, it was only in respect of finding of trial court on Issue No.7 as rest issues were decided in favour of plaintiff. Learned Single Judge was satisfied with the submissions of plaintiff and decided Issue No.7 in favour of plaintiff and held that from Ex.1, it is clear that primary intention of the parties was to enter into an agreement of sale of land, therefore, plaintiff is entitled to specific performance of the contract. However, Single Bench instead of allowing appeal and passing decree of specific performance, allowed the defendants/respondents to argue on other issues, without any cross appeal or cross objections under Order 41 Rule 22 CPC in respect of finding of trial court in respect of other issues, observing that appellate court is empowered under Order 41 Rule 33 to do complete justice between the parties and heard arguments on other issues also. The findings of the trial court in respect of other issues were upheld but finding of Issue No.5 of the trial court was not affirmed and it was held that trial court was not justified in deciding this issue in favour of the plaintiff and against the respondents. Learned counsel for the respondents did not press earlier part of Issue No.5 regarding the contract being uncertain, incomplete and lacking mutuality, but held that agreement (Ex.1) was not enforceable in law as it had not been entered into in accordance with the provisions of Section 80 of the Act of 1959 and in view of finding on Issue No.5 learned Single Judge dismissed the appeal of the plaintiff and held that plaintiff is only entitled to receive Rs.1,74,500/- with interest at the rate of 6% per annum from the date of filing of the suit till realisation. 15. Being aggrieved with the aforesaid judgment and decree passed by learned Single Judge, the plaintiff has preferred this intra-court appeal. 16. 15. Being aggrieved with the aforesaid judgment and decree passed by learned Single Judge, the plaintiff has preferred this intra-court appeal. 16. Submission of the learned counsel for the appellant is that learned Single Judge committed an illegality in reversing the finding in respect of Issue No.5 in absence of any cross appeal or cross objections on behalf of defendants as trial court decided Issue No.5 in favour of plaintiff. Learned Single Judge was not right in the facts and circumstances of the present case in invoking its appellate powers under Order 41 Rule 33 CPC in favour of defendant and in allowing to argue on other issues, which had already decided against them by the trial court. It was submitted that Issue No.7 was only the issue, which was decided against plaintiff by trial court and it was held that plaintiff is not entitled to a decree of specific performance and is entitled to an alternative prayer regarding refund of the amount. Although the said finding of the trial court has been reversed by the Single Bench and has held that primary intention of the parties, as per agreement, was to enter into an agreement for sale of land and not for refund of the amount only, but while exercising power under Order 41 Rule 33 CPC reversed the finding in respect of part two of Issue No.5 and wrongly held that the agreement was contrary to provisions of Section 80 of the Rajasthan Municipalities Act, 1959 (for short Act of 1959), thus, it is not enforceable. 17. Shri S.M. Mehta learned Sr. Counsel appearing on behalf of appellant submitted that a 'proviso' was added to sub-section (7) of Section 80 of the Rajasthan Municipalities Act, 1959 vide Rajasthan Municipalities (Second Amendment) Act, 1972 w.e.f. 9th September, 1972 and as per amended provision, the contract (Ex.1) was absolutely legal and justified. The said proviso was rightly interpreted by the learned trial court but interpretation taken by learned Single Judge in this regard was absolutely not tenable in the eye of law. He has submitted that the said amendment was added with the specific term that “it shall be and shall always be deemed to have been added”. Therefore, the said amendment was retrospective in nature and should have been treated to have been added from the date of enactment of the Act itself. He has submitted that the said amendment was added with the specific term that “it shall be and shall always be deemed to have been added”. Therefore, the said amendment was retrospective in nature and should have been treated to have been added from the date of enactment of the Act itself. He referred the statement of objects and reasons of this Amendment Act and submitted that since compliance of requirement of Section 80 in relation to contracts was found to be difficult by the legislature, where elected board was not in existence, therefore, the proviso was added and as per added provision, the contract (Ex.1) was lawful and enforceable. He, therefore, submitted that finding of learned Single Judge in respect of Issue No.5 be set aside and plaintiff's suit for specific performance be decreed. In support of his submissions he referred decisions in the cases of MIG Cricket Club vs. Abhinav Sahakar Education Society ( 2011 (9) SCC 97 ), State of Bombay vs. Pandurang Vinayak & Ors. ( AIR 1953 SC 244 ), Malchand Agarwala vs. Santolal Agarwalla (AIR 1954 Assam 177), Prabhakar Kondaji Bhapkar vs. Emperor (AIR (31) 1944 Bombay 119), Prakash Chandra vs. Angadlal & Ors. ( AIR 1979 SC 1241 ), Jaswantsingh vs. Issar Singh (AIR 1959 Rajasthan 88 = 1959 RLW 55 (V 46 C 30) and Shrimant Shamrao Suryavanshi and Anr. vs. Pralhad Bhairoba Suryavanshi by Lrs. & Ors. ( AIR 2002 SC 960 = RLW 2002(2) SC 313). 18. None appeared on behalf of defendant/respondent No.8, despite service of notice, to oppose the appeal. 19. Shri A.K. Sharma, learned Sr. Counsel appearing on behalf of defendant/respondent No.3 supported the impugned judgment of Single Judge and submitted that Single Judge being an appellate court had powers to exercise the provisions of Order 41 Rule 33 CPC to do complete justice between the parties and, therefore, there was nothing wrong in allowing the defendants to argue in respect of other issues and after hearing the parties learned Single Judge has rightly decided Issue No.5. He submitted that agreement (Ex.1) was not enforceable being contrary to Section 80 of the Act. In support of his submissions, he referred decisions in the cases Dr. H.S. Rikhy & Ors. He submitted that agreement (Ex.1) was not enforceable being contrary to Section 80 of the Act. In support of his submissions, he referred decisions in the cases Dr. H.S. Rikhy & Ors. vs. The New Delhi Municipal Committee ( AIR 1962 SC 554 ) and Piloo Dhunjishaw Sidhwa vs. Municipal Corporation of The City of Poona ( AIR 1970 SC 1201 ). 20. We have considered the submissions of learned counsel for the parties and examined the judgements of Single Bench and trial court, pleadings and evidence adduced by parties. 21. From the facts narrated above, it has borne out that 12 issues were framed by the trial court. Defendant No.3 did not lead any evidence in support of his case. Defendant No.8 examined D.W.1 and D.W.2. Defendant/ Respondent No.8 did not appear and oppose this appeal despite service of notice. The trial court, while deciding Issue No.1 held that suit property was not a joint Hindu Family property of defendants Nos. 1 to 7. While deciding Issue No.2 it was held that agreement (Ex. 1) was executed by defendant No. 1. Issue No. 3 regarding payment of Rs. 1,74,500/- was also found to be proved and was decided in favour of the plaintiff. Issue No.4 relating to defendant No.8, it was held by the trial court that defendant No.8 is not a bonafide purchaser for value and without notice. The sale deed dated 16.7.1963 in favour of defendant No. 8 has been executed without consideration, thus, it is bad in law. Issue No.5 was decided by trial court in favour of plaintiff and it was held that contract dated 29.10.1960 is a valid contract and it is enforceable, but learned Single Judge while exercising its power under Order 41 Rule 33 CPC reversed the finding of the trial court and held that agreement (Ex.1) was not enforceable. Issue No.6 was decided in favour of plaintiff and it was held that plaintiff was ready and willing to perform its part of agreement. Issue No.7 was partly decided in favour of plaintiff and partly against defendants by the trial court and it was held that plaintiff is not entitled to a decree of specific performance and is entitled only for refund of the amount and liquidated damages. Issue No.7 was partly decided in favour of plaintiff and partly against defendants by the trial court and it was held that plaintiff is not entitled to a decree of specific performance and is entitled only for refund of the amount and liquidated damages. However, learned Single Judge reversed the finding of trial court and held that primary intention of the parties was to execute the contract for sale of land and not for refund of the amount. The other issues were decided in favour of the plaintiff and against defendants. 22. From the above facts, it is clear that for disposal of the present intra-court appeal, Issues Nos. 5 & 7 are relevant. 23. Issue No.7 was, although, decided initially against plaintiff, in part, by the trial court and it was held that plaintiff is not entitled to a decree of specific performance and later part of issue was decided holding plaintiff entitled for the refund of the amount with liquidated damages, but Single Bench decided this issue in favour of the plaintiff and held that plaintiff is entitled to a decree of specific performance. 24. In Prakash Chandra vs. Angadlal & Ors.'s case (supra), the Hon'ble Apex Court held that the ordinary rule is that specific performance should be granted. It ought to be denied only when equitable considerations point to its refusal and the circumstances show that damages would constitute an adequate relief. Para 9 of the judgment reads as under:- “9. The ordinary rule is that specific performance should be granted. It ought to be denied only when equitable considerations point to its refusal and the circumstances show that damages would constitute an adequate relief. In the present case, the conduct of the appellant has not been such as to disentitle him to the relief of specific performance. He has acted fairly throughout, and there is nothing to show that by any act of omission or commission he encouraged Mohsinali and Qurban Hussain to enter into the sale with the first and second respondents. There is no evidence that the appellant secured an unfair advantage over Mohsinali and Qurban Hussain when he entered into the agreement. Nor is there anything to prove that, the performance of the contract would involve the respondents in some hardship which they did not foresee. There is no evidence that the appellant secured an unfair advantage over Mohsinali and Qurban Hussain when he entered into the agreement. Nor is there anything to prove that, the performance of the contract would involve the respondents in some hardship which they did not foresee. In our opinion, there is no reason why the appellant should not be granted the relief of specific performance. An application has been filed before us by the first and second respondents alleging that the said respondents had raised certain constructions on the site during the pendency of the litigation and, therefore, specific relief should not be granted to the appellant. It is denied by the appellant that any permanent constructions have been erected on the land in dispute. It is said that a temporary wooden structure only has been put up on a portion of the land. The respondents have attempted to show by reference to a map and photographs that permanent constructions have been made on the site. Having regard to the material before us, we are unable to hold that any permanent constructions have been raised on the said land. If the first and second respondents have in fact raised any constructions on the site, it will be open to them to remove the building material when possession is delivered to the appellant.” (emphasis supplied) 25. In Jaswantsingh vs. Issar Singh's case (supra) , this Court held, that the test to determine whether there is an alternative contract is whether the defendant had an alternative choice given by the conditions either to sell the land or to pay the amount and if this is not so and the agreement points out that the sum mentioned was in the nature of security for the performance of the contract, it cannot be said that the specific performance can be refused to the plaintiff. Relevant portion of Para 8 reads as under:- “The test to determine whether there is an alternative contract is whether the defendant had an alternative choice given by condition No.4 either to sell the land or to pay the amount of Rs. 2,000/- and if this is not so and if the agreement points out that the sum mentioned was in the nature of a security for the performance of the contract, it cannot be said that the specific performance can be refused to the plaintiff. 2,000/- and if this is not so and if the agreement points out that the sum mentioned was in the nature of a security for the performance of the contract, it cannot be said that the specific performance can be refused to the plaintiff. The law on the subject has been stated in Halsbury's Laws of England Second Edition Volume 31 paragraphs 373 and 374. (373) Where the contract contains a stipulation that in the event of non-performance a certain sum of money shall be paid, that fact is not in itself decisive in considering whether or not specific performance should be granted. Nor does the distinction between penalty and liquidated damages affect the answer to this question. The answer is to be found by considering the intention of the parties, that is, whether the party bound to performance has an alternative choice given to him by the contract, to perform or to pay the agreed sum, or whether he is bound to do a certain thing with a penal sum or sum by way of liquidated damages attached as security. In the latter case the Court, notwithstanding the penal clause, enforces performance if the contract be such that without the penal clause it would have been proper for specific performance. (374) Where the contract contains a penalty clause, the contractee has his right in law upon the contract for the money payable under the clause, and also his right in equity to specific relief; he can, at his election, obtain either form of relief but he cannot obtain both forms.” (9) Section 20 of the Specific Relief Act also lays down the same law. Section 20 runs as follows: “A contract, otherwise proper to be specifically enforced may be thus enforced, though a sum be named in it as the amount to be paid in case of its breach, and the party in default is willing to pay the same.” In my opinion Ex. 1 read as a whole points out that the sum of Rs. 2,000/- in condition No.4 was mentioned as the amount to be paid in case of the breach of condition No.1 and was not in the form of alternative contract under which it can be said that the contract was to be deemed fully performed by payment of Rs. 2,000/-. The same view has been taken in a number of cases. 2,000/- in condition No.4 was mentioned as the amount to be paid in case of the breach of condition No.1 and was not in the form of alternative contract under which it can be said that the contract was to be deemed fully performed by payment of Rs. 2,000/-. The same view has been taken in a number of cases. In the Privy Council case of Bissessar Dass Daga vs. Emmanuel Vas, ILR 55 Cal 238: (AIR 1928 PC 27), the terms of the decree were under consideration. Clause 10 of that decree provided for the delivery of manganese ore as follows: “That in the event of the defendants' failing to deliver the full quantity of 4,000 tons of the stipulated grade in any particular year or violating any of the conditions of this compromise, the defendants shall pay to plaintiff's damages at the rate of Re. 1/- (rupee one) per ton on the whole of the quantity which may then have remained undelivered out of the total quantity of 31,234 tons and the same shall be recovered by execution of this decree.” (emphasis supplied) 26. From the agreement (Ex.1), it is clear that plaintiff wanted to purchase the disputed land for construction of town hall and selected the land in dispute. From the evidence, it is clear that the plaintiff was required to pay only Rs. 30,000/-as an advance, which had already been paid, and remaining agreed amount of sale and amount relating to Malba i.e. debris was to be paid by the plaintiff at the time of execution and registration of sale deed by defendant No. 1. Total amount of agreement with cost of debris comes to Rs. 1,80,000/- (Rs. 1,57,000/- plus Rs.23,000/-). However, out of above total amount, the plaintiff had already paid Rs. 1,74,500/- on various dates as demanded by defendant No.1 from time to time. It is relevant to mention that payments were made through cheques. The receipts of the above amount received by defendant No.1 were placed on record. Issue No.3 was in respect of payment of Rs. 1,74,500/- and finding in this regard is in favour of plaintiff. 1,74,500/- on various dates as demanded by defendant No.1 from time to time. It is relevant to mention that payments were made through cheques. The receipts of the above amount received by defendant No.1 were placed on record. Issue No.3 was in respect of payment of Rs. 1,74,500/- and finding in this regard is in favour of plaintiff. The terms and conditions of the agreement were reduced in writing, which have been reproduced above and on the basis of evidence of parties, it is clear that the primary intention of the parties was to sale/purchase the land in dispute and not to get the refund of the amount in case of breach of the contract. It is relevant to mention that defendants Nos. 1 & 2 and 4 to 7 have not contested the suit and they have not even filed written statement. The ex parte proceedings were drawn against them. Defendant No.3 filed written statement but did not lead any evidence. Defendant No.8 led his evidence. But while deciding Issue No.4, it was held that the defendant No.8 was not a bonafide purchaser and the sale deed dated 16th July, 1963 in favour of defendant No.8 is a fictitious and bogus document. Even Single Bench also affirmed these findings of the trial court. It is relevant to mention that no cross objections under Order 41 Rule 22 CPC were preferred before Single Bench in respect of issues which were decided in favour of plaintiff, either by defendant No.3 or defendant No.8. After considering all the facts and circumstances of the case, we are of the view that finding of trial court in respect of Issue No.7 was not correct and finding recorded by Single Bench in this regard is absolutely legal and justified and has rightly been decided in favour of the plaintiff. Therefore, Issue No.7 is decided in favour of the plaintiff and it is held that plaintiff is entitled to a decree of specific performance of the contract dated 29th October, 1960 in respect of the disputed property. 27. So far as Issue No.5 is concerned, the trial court held that agreement (Ex.1) is signed by the Administrator and as per the amended provision, it is a valid contract, although, it was observed that the formalities required under Section 80 of the Rajasthan Municipalities Act are not complied with. 27. So far as Issue No.5 is concerned, the trial court held that agreement (Ex.1) is signed by the Administrator and as per the amended provision, it is a valid contract, although, it was observed that the formalities required under Section 80 of the Rajasthan Municipalities Act are not complied with. Ultimately, Issue No.5 was decided by the trial court in favour of plaintiff and against the defendants. Learned Single Judge, while deciding Issue No.5, came to the conclusion that finding of trial court in respect of Issue No.5 is not legal as agreement is not in accordance with the provisions of Section 80 of the Act, therefore, it is not enforceable. 28. Thus, the sole question for our consideration in this appeal is with regard to Issue No.5 as to whether agreement (Ex.1) is in accordance with Section 80 of the Act of 1959 and it is enforceable in law against defendants or not? 29. Learned Single Judge relied upon provisions of Section 80 before its amendment made vide ordinance dated 1st July, 1972 and held that Section 80 of the Act, which was in force at the relevant time did provide that every contract entered into by or on behalf of the Board shall be in writing and shall be signed by the Chairman or Vice Chairman and by the Executive Officer or Secretary of the Board and shall be sealed with the common seal of the Board. Therefore, it was not in conformity with the provisions and did not fulfill the necessary requirements. Therefore, as per sub-section (8) of Section 80, the agreement was not binding on the Board. So far as 'proviso' added in sub-section (7) of Section 80 by Ordinance dated 1st July, 1972 is concerned, the Single Bench observed that the agreement (Ex.1), which was void on account of non-compliance and not fulfilling the requirements and mandatory formalities provided under Section 80(7), could not be validated by the Ordinance of 1972. Single Bench was of the view that the legislature has inserted 'proviso' to Section 80(7), but it does not have the effect of validating a void contract. Single Bench was of the view that the legislature has inserted 'proviso' to Section 80(7), but it does not have the effect of validating a void contract. If the legislature wanted to validate such a void agreement, it should have brought a validating Act or Ordinance, to validate such prior agreements, but since it has not been done, an invalid contract or agreement cannot be validated merely by introducing a proviso to Section 80(7) of the Act of 1959. Learned Single Judge also observed that present suit was filed on 26.10.1963 and case was listed before the trial court for arguments on 3.4.1972. The case was reserved once for judgment on 8th July 1972 and it was during this period that the Government came with this Ordinance on 1st July, 1972 then arguments were again heard and learned lower court decided this issue against defendants only on the basis of the Ordinance. 30. For the purpose of deciding the aforesaid controversy, it will be relevant to refer the statement of objects and reasons mentioned in the Rajasthan Municipalities (Second Amendment) Bill 1972, which are reproduced as under:- “STATEMENT OF OBJECTS AND REASONS According to sub-section (7) of section 80 of the Rajasthan Municipalities Act, 1959, hereinafter referred to as the Act, every contract entered into by or on behalf of a Municipality, shall be in writing and shall be signed by the Chairman and Vice-Chairman and by the Executive Officer or Secretary of the Municipality and shall be sealed with the common seal of the Board. Sub-section (8) of section 80 of the Act, further provides that no contract shall be binding on a Board unless the requirements of this section are complied with. In case an Officer, Committee or authority is appointed under section 293 or an Administrator is appointed under sub-section (1) of section 293A or person or persons are appointed under sub-clause (ii) of clause (c) of sub-section (4) or clause (b) of sub-section (5) of section 295 in relation to a Board by the State Government, the compliance of the requirements of section 80 in relation to a contract becomes difficult. Under the circumstances the Governor felt it necessary to dispense with the compliance of these provisions and therefore promulgated the Rajasthan Municipalities (Amendment) Ordinance, 1972 by amending the Act. Now by this amendment Act the same arrangement is permanently made to overcome this difficulty permanently. Under the circumstances the Governor felt it necessary to dispense with the compliance of these provisions and therefore promulgated the Rajasthan Municipalities (Amendment) Ordinance, 1972 by amending the Act. Now by this amendment Act the same arrangement is permanently made to overcome this difficulty permanently. Hence, this Bill.” 31. The said Bill was passed and vide the Rajasthan Municipalities (Second Amendment) Act, 1972 the proviso was inserted in sub-section (7) of Section 80 of the Rajasthan Municipalities Act, 1959. Sub-sections (4), (6), (7) and (8) of Section 80 of the Act are as under:- “Sec. 80. Provisions relating to contracts.- (1) ... ... ... ... ... ... ... ... (2) ... ... ... ... ... ... ... ... (3) ... ... ... ... ... ... ... ... (4) In the case of a contract for the purchase of movable property or for the sale of any movable property belonging to a board, if the expenditure which the purchase would involve or the value of the property to be sold as estimated in the municipal accounts exceeds tow thousand rupees in the case of a city and one thousand rupees in other cases the sanction of the board is required. (5) ... ... ... ... ... ... ... ... (6) In the case of every contract not otherwise provided for in the preceding sub-sections of this section, the sanction of such committee of such individual as under the provisions of this Act or of the rules for the time being in force thereunder is empowered in this behalf is required. (7) Every contract entered into by or on behalf of a board, other than a contract to which sub-sec. (6) applies, shall be in writing an shall be signed by the chairman and vice-chairman and by the executive officer or secretary of the board and shall be sealed with the common seal of the board. Every contract to which sub-sec. (6) applies shall be executed by the chairman of such committee or by such other individual as is empowered in that behalf, in such manner and form as according to the law for time being in force would bind such chairman or individual as if such contract were executed by him on his own behalf. (8) No contract shall be binding on a board unless the requirements of this section are complied with.” 32. (8) No contract shall be binding on a board unless the requirements of this section are complied with.” 32. The Rajasthan Municipalities (Second Amendment) Act, 1972 is reproduced as under:- “THE RAJASTHAN MUNICIPALITIES (SECOND AMENDMENT) ACT, 1972.* (Act No.15 of 1972) (Received the assent of the Governor on the 9th day of September, 1972.) An Act further to amend the Rajasthan Municipalities Act, 1959 (Rajasthan Act 38 of 1959). Be it enacted by the Rajasthan State Legislature in the Twenty-third year of the Republic of India, as follows:- 1. Short title.- This Act may be called the Rajasthan Municipalities (Second Amendment) Act, 1972. 2. Amendment of Sec. 80, Rajasthan Act 38 of 1959.- To sub-sec. (7) of Sec. 80 of the Rajasthan Municipalities Act, 1959 (Rajasthan Act 38 of 1959) the following proviso shall be and shall always be deemed to have been added namely:- “Provided that when an officer, committee or authority is appointed under Sec. 293 or an administrator is appointed under sub-sec. (1) of Sec. 293A or person or persons are appointed under sub-clause (ii) of clause (c) of sub-sec. (4) or clause (b) of sub-sec. (5) of Sec. 295 in relation to a Board by the State Govt., it shall be sufficient for every contract entered into by or on behalf of the Board during the period of such appointment, if it is signed by such officer, committee or autho-rity or the administrator or person or persons, as the case may be.” 3. Repeal.- The Rajasthan Municipalities (Amendment) Ordinance, 1972 (Ordinance No.3 of 1972) is hereby repealed.” 33. Section 2 of the Amendment Act, 1972, reproduced above, makes it clear that the language used by legislature in it “following proviso shall be and shall always be deemed to have been added”. The words “shall be” and further “shall always be” and further “deemed to have been added” makes it clear beyond any reasonable doubt that proviso was added from its very inception and was retrospective in nature. 34. The words “shall be” and further “shall always be” and further “deemed to have been added” makes it clear beyond any reasonable doubt that proviso was added from its very inception and was retrospective in nature. 34. In State of Bombay vs. Pandurang Vinayak & Ors.'s case (supra), the Hon'ble Supreme Court held that when a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion. The relevant portion of Para 5 of the judgment reads as under:- “When a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion. (Vide Lord Justice James in Ex parte Walton; In re Levy, (1881) 17 Ch. D. 746 at p. 756(A)). If the purpose of the statutory fiction mentioned in s. 15 is kept in view, then it follows that the purpose of that fiction would be completely defeated if the notification was construed in the literal manner in which it has been construed by the High Court. In East End Dwellings Co. Ltd. vs. Finsbury Borough Council, (1952) A. C. 109 (B), Lord Asquith while dealing with the provisions of the Town and County Planning Act, 1947, made reference to the same principle and observed as follows: “If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which if the putative, state of affairs had in fact existed, must inevitably have flowed from or accompanied it .................... The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.” The corollary thus of declaring the provisions of S. 25, Bombay General Clauses Act, applicable to the repeal of the ordinance and of deeming that ordinance an enactment is that wherever the word “ordinance” occurs in the notification, that word has to be read as an enactment.” 35. In Malchand Agarwala vs. Santolal Agarwalla's case (supra), the Division Bench of Assam High Court observed that when a statute declares that a person or thing shall be deemed to be or shall be treated as something which in reality it is not, it shall have to be treated as so during the entire course of the proceeding. The relevant portion of Para 7 of the judgment reads as under:- “When a statute declares that a person or thing shall be deemed to be or shall be treated as something which in reality it is not, it shall have to be treated as so during the entire course of the proceeding. The legal fiction introduced by legislation has to be given full effect. If an order under S. 4(1) has to be regarded as tantamount to a decree for purposes of appeal, the order on appeal will have the same status as though the appeal were from a decree. For, it is only in that way that full effect is given to the statutory direction. An order would not be treated as a decree if it is so treated merely for the purposes of the filing of the appeal. It remains a decree all throughout the course of the appeal. The appellate decision is the most essential part of the appellate proceedings. Even for that decision the order of the trial court is to be treated as a decree. The appellate decision will therefore have to be a decree.” 36. In Prabhakar Kondaji Bhapkar vs. Emperor's case (supra), the Full Bench of Bombay High Court held that the words “shall be deemed always to have been substituted” clearly mean that the new clause is substituted, and the old clause from the date of its inception is to be read in the form of the substituted clause. In Prabhakar Kondaji Bhapkar vs. Emperor's case (supra), the Full Bench of Bombay High Court held that the words “shall be deemed always to have been substituted” clearly mean that the new clause is substituted, and the old clause from the date of its inception is to be read in the form of the substituted clause. Otherwise no other meaning can be attached to the words “shall be deemed always to have been substituted”. There would be nothing for which it could have been substituted. The relevant portion of the judgment reads as under:- “It is argued, in the first instance, that that Ordinance goes beyond the powers of the Governor-General under S. 72 of Sch. 9, Government of India Act. But there is really no substance in that point. Under that section the Governor-General may, in cases of emergency, make and promulgate Ordinances for the peace and good government of British India or any part thereof, and any Ordinance so made shall, for the space of not more than six months from its promulgation, have the like force of law as an Act passed by the Indian Legislature. That is the material part of the section, and the limitation of six months has been removed by the St. 3 & 4 Geo. VI, c. 33. It is said that the Governor-General cannot pass a retrospective ordinance. But as this Ordinance is to have the like force of law as an Act passed by the Indian Legislature, and it has not been disputed that the Indian Legislature can pass a retrospective Act, there seems to be no force in that contention. Nor is there any force in the contention that the Governor-General cannot amend an existing Act of the Indian Legislature. The same reasoning applies to that. The Indian Legislature can amend an Act, and, therefore, the Governor-General can under S.72. This Court very recently upheld a retrospective Ordinance made by the Governor-General in 45 Bom. L. R. 323. The Ordinance is open, I think, to certain verbal criticisms. It says : “the following clause shall be substituted, and shall be deemed always to have been substituted.” Obviously, if it had always been substituted, then there would be nothing for which it could have been substituted. L. R. 323. The Ordinance is open, I think, to certain verbal criticisms. It says : “the following clause shall be substituted, and shall be deemed always to have been substituted.” Obviously, if it had always been substituted, then there would be nothing for which it could have been substituted. But the words clearly mean that the new clause is substituted, and the old clause from the date of its inception is to be read in the form of the substituted clause. I do not think that any other meaning can be attached to the words “ shall be deemed always to have been substituted.” So one has to read cl. (x) of sub-s.(2) of S.2, Defence of India Act, as having from its inception been in the form of the substituted clause. Reading it in that form, the difficulties which the Federal Court pointed out, that R.26 did not come within that paragraph as it originally existed, were overcome. The amendments seem to cover all the grounds relied upon by the Federal Court.” 37. In Bangaru Laxman vs. State (through CBI) & Anr. ( 2012(1) SCC 500 ), the Hon'ble Apex Court held a deeming provision is a legal fiction and an admission of the non-existence of the fact deemed. Hence, while interpreting a provision creating a legal fiction, the court has to ascertain the purpose for which the fiction is created. Paras 20 to 24 of the judgment are as under:- “20. It is well known that a deeming provision is a legal fiction and an admission of the non-existence of the fact deemed. (See J.K. Cotton Spg. and Wvg. Mills Ltd. vs. Union of India (1987 Supp SCC 350) p.365, para 40; Therefore, while interpreting a provision creating a legal fiction, the court has to ascertain the purpose for which the fiction is created. 21. The law on this aspect has been very neaty summed up by Lord Justice James in Levy, In re, ex p Walton (1881 (17) Ch D 746). At Ch D p.756, the learned Judge formulated as follows: “.... When a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to.” 22. At Ch D p.756, the learned Judge formulated as follows: “.... When a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to.” 22. The aforesaid formulation has been approved by a Constitution Bench of this Court in State of Tranvancore-Cochin vs. Shanmugha Vilas Cashewnut Factory ( AIR 1953 SC 333 ). At p. 343 of the Report the aforesaid principles have been referred to by this Court along with the various other decisions and which are set out: (AIR para 38) “38. ... '... When a statute enacts that something shall be deemed to have been done, which in fact and in truth was not done, the court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to.' The above observations were quoted with approval by Lord Cairns and Lord Blackburn in Hill vs. East and West India Dock Co. (1984(9) AC 448 (HL). Lord Blackburn went on to add at AC p. 458: 'I think the words here “shall be deemed to have surrendered” ... mean, shall be surrendered so far as is necessary to effectuate the purposes of the Act and no further ....' “ 23. Following the aforesaid well-settled principle, as we must, we hold that the deeming provision introduced in Section 5(2) of the PC Act is not for fettering the power of the Special Judge to grant pardon in terms of Section 306 of the Code. The purpose of introducing the deeming provision in Section 5(2) of the PC Act is manifest from the text of Section 5(2), namely, the same is introduced only for the purposes of sub-sections (1) to (5) of Section 308 of the Code and it is only for the said purpose that the sanction is deemed to have been tendered under Section 307 of the Code. 24. 24. If this Court accepts the contention of the learned counsel for the appellant that the Special Judge under the PC Act has no power to grant the pardon under Section 306 of the Code in view of the deeming clause under Section 5(2) of the PC Act, that will amount to reading Section 5(2) of the PC Act in a manner which is revolting to reason and by doing violence to the plain words of the statutes.” 38. The legislature has legislative power to enact any provisions of law with prospective or retrospective effect. The statement of objects and reasons makes it clear that according to sub-section (7) of Section 80 of the Rajasthan Municipalities Act, every contract entered into by or on behalf of a Municipality, shall be in writing and shall be signed by the Chairman and Vice Chairman and by the Executive Officer or Secretary of the Municipality and shall be sealed with the common seal of the Board. Sub-section (8) of Section 80 of the Act further provides that no contract shall be binding on Board unless requirements of this Section are complied with. In case, an officer, committee or Authority is appointed under Section 293 or an Administrator is appointed under sub-section (1) of Section 293(A) or a person or persons are appointed under sub clause (ii) of Clause (c) of sub-section (4) or clause (b) of sub-section (5) of Section 295 in relation to a Board by the State Government, the compliance of the requirements of Section 80 in relation to a contract becomes difficult. The above objects and reasons behind amendment makes it clear that as and when an Administrator is appointed and there is no elected Board or there is no Chairman or Vice Chairman then in that situation, the said requirement was necessary to be dispensed with for compliance of these provisions. The provisions of the Act are interpreted, as per intention of the legislature and for this purpose an assistance can be taken from objects and reasons mentioned in the Bill. 39. So far as Jaipur Municipality is concerned, there was no elected Board at the relevant time and an Administrator had been appointed. Therefore, it was very difficult to comply with the provisions of Section 80(7) of the Act of 1959. 39. So far as Jaipur Municipality is concerned, there was no elected Board at the relevant time and an Administrator had been appointed. Therefore, it was very difficult to comply with the provisions of Section 80(7) of the Act of 1959. The legislature in its wisdom and while exercising its legislative powers amended Section 80(7) of the Act of 1959 and added a new proviso in it vide Amendment Act of 1972 and making it clear that the proviso (7) shall be and shall always be deemed to have been added. The above amendment was brought on 1st July, 1972 by way of an Ordinance and thereafter the Bill was introduced and it was passed and an Act itself was amended, which received the assent of Governor on 9th September, 1972 and Ordinance was repealed. In these circumstances, we are of the view that learned Single Judge wrongly interpreted the new amendment made in Section 80(7) of the Act of 1959 and in observing that the agreement (Ex.1) was void and it could have been validated by a valid Act and not by this amendment i.e. by addition 'proviso' to Section 80(7) of the Act. In our view, the agreement (Ex.1) dated 29th October, 1960 was in conformity with Section 80(7) of the Act. 40. From the proviso added to Section 80(7), it is clear that there was no specific requirement of putting seal of the Board on agreement. So far as present case is concerned, it was a suit for specific performance of the agreement dated 29th October, 1960 entered into between the plaintiff and the defendant No.1, therefore, any objection, if any, in this regard could have been taken only by defendant No.1 or at the most, by defendants Nos. 1 to 7. Defendants Nos. 1, 2, 4 to 7 did not contest the suit. Defendant No.3 in his written statement has not taken such a plea nor he led any evidence. 41. That apart, it is also relevant to observe that Issue No.5 was decided by the trial court in favour of plaintiff and no cross appeal in respect of refund of amount or cross objection in respect of findings of other issues in favour of plaintiff was preferred by defendant No.3 in regular first appeal filed by plaintiff against finding in respect of Issue No.7 of the trial court. The powers under Order 41 Rule 33 CPC are exercised by appellate court to do complete justice at its own. Here is the case, where Single Bench did not exercise its powers at its own, but allowed the defendants to challenge the findings of trial court on all issues which were decided against them and which could have been decided only by way of cross objection under Order 41 Rule 22 CPC. It appears from the impugned judgment of Single Bench that such an objection was raised by appellant at the time of hearing of appeal and the same was over-ruled. 42. The question, therefore, emerges that invoking of power by Single Judge under Order 41 Rule 33 CPC in the facts and circumstances of the case was justified or not? The Trial court held that Ex.1 contract dated 29th October, 1960 is proved. Defendant No.8 is not a bonafide purchaser for value without notice. The sale deed in favour of defendant No.8 is bogus and fictitious document. The payment of Rs. 1,74,500/-was made by plaintiff to defendant No.1. The plaintiff was ready and willing to perform its part of agreement. Defendant No.3 did not lead any evidence. Defendant No.3 in his written statement took a plea that agreement (Ex.1) dated 29th October, 1960 was never executed by defendant No.1 nor any payment was made in this regard by plaintiff to defendant No.1, whereas finding of trial court in this regard was recorded against defendant No.3. Similarly, defendant No.8 was not found to be bonafide purchaser for value without notice. The property in dispute was purchased by defendant No.1 in 1959 for a consideration of Rs. 1,30,000/-. It was agreed to be sold to plaintiff in 1960 for a consideration of Rs.1,80,000/-, whereas it was sold to respondent No.8 in 1963 for a sum of Rs.70,000/- only. All the pleas of defendant No.8 were found to be false by trial court as well as Single Bench both. In such circumstances, invoking of powers under Order 41 Rule 33 CPC in favour of defendants, in the facts and circumstances of the present case were not at all warranted. Learned Single Judge wrongly exercised its powers under Order 41 Rule 33 CPC. 43. In the present case, the trial court decided all issues in favour of plaintiff/appellant except Issue No.7. Learned Single Judge wrongly exercised its powers under Order 41 Rule 33 CPC. 43. In the present case, the trial court decided all issues in favour of plaintiff/appellant except Issue No.7. The finding of the trial court in respect of Issue No.7 has been reversed by the Single Bench and has been decided in favour of plaintiff/appellant. If the Single Bench would not have allowed the defendants/respondents to argue, in absence of cross objections under Order 41 Rule 22 CPC, in respect of findings on other issues including Issue No. 5 then plaintiff's suit was bound to be decreed. Therefore, the question relating to invoking of power under Order 41 Rule 33 CPC by Single Bench in the present case has become very significant. For ready reference Rule 33 of Order 41 as also Rule 4 thereof, which have to be read necessarily together, are set out hereunder:- “ORDER 41 Appeals from original decrees 33. Power of court of appeal.-- The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees: Provided that the appellate court shall not make any order under Section 35-A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order. Illustration A claims a sum of money as due to him from X or Y, and in a suit against both obtains a decree against X. X appeals and A and Y are respondents. The appellate court decides in favour of X. It has power to pass a decree against Y.” “4. Illustration A claims a sum of money as due to him from X or Y, and in a suit against both obtains a decree against X. X appeals and A and Y are respondents. The appellate court decides in favour of X. It has power to pass a decree against Y.” “4. One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all.- Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the appellate court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be.” The above provision was considered by the Hon'ble Apex Court in Banarsi vs. Ram Phal ( 2003 (9) SCC 606 ), wherein the Hon'ble Apex Court held that the object sought to be achieved by conferment of such power on the appellate court is to avoid inconsistency, inequity, inequality in reliefs granted to similarly placed parties and unworkable decree or order coming into existence. The overriding consideration is achieving the ends of justice. Wider the power, higher the need for caution and care while exercising the power. The Apex Court held that power is subject to at least three limitations; firstly, the power cannot be exercised to the prejudice or disadvantage of a person not a party before the court; secondly, a claim given up or lost cannot be revived; and thirdly, such part of the decree which essentially ought to have been appealed against or objected to by a party and which that party has permitted to achieve a finality cannot be reversed to the advantage of such party. Para 15 of the judgment reads as under:- “15. Rule 4 seeks to achieve one of the several objects sought to be achieved by Rule 33, that is, avoiding a situation of conflicting decrees coming into existence in the same suit. Para 15 of the judgment reads as under:- “15. Rule 4 seeks to achieve one of the several objects sought to be achieved by Rule 33, that is, avoiding a situation of conflicting decrees coming into existence in the same suit. The abovesaid provisions confer power of the widest amplitude on the appellate court so as to do complete justice between the parties and such power is unfettered by consideration of facts like what is the subject matter of the appeal, who has filed the appeal and whether the appeal is being dismissed, allowed or disposed of by modifying the judgment appealed against. While dismissing an appeal and though confirming the impugned decree, the appellate court may still direct passing of such decree or making of such order which ought to have been passed or made by the court below in accordance with the findings of fact and law arrived at by the court below and which it would have done had it been conscious of the error committed by it and noticed by the Appellate Court. While allowing the appeal or otherwise interfering with the decree or order appealed against, the appellate court may pass or make such further or other, decree or order, as the case would require being done, consistently with the findings arrived at by the appellate court. The object sought to be achieved by conferment of such power on the appellate court is to avoid inconsistency, inequity, inequality in reliefs granted to similarly placed parties and unworkable decree or order coming into existence. The overriding consideration is achieving the ends of justice. Wider the power, higher the need for caution and care while exercising the power. Usually the power under Rule 33 is exercised when the portion of the decree appealed against or the portion of the decree held liable to be set aside or interfered by the appellant court is so inseparably connected with the portion not appealed against or left untouched that for the reason of the latter portion being left untouched either injustice would result or inconsistent decrees would follow. The power is subject to at least three limitations: firstly, the power cannot be exercised to the prejudice or disadvantage of a person not a party before the Court: secondly, a claim given up or lost cannot be revived; and thirdly, such part of the decree which essentially ought to have been appealed against or objected to by a party and which that party has permitted to achieve a finality cannot be reversed to the advantage of such party. A case where there are two reliefs prayed for and one is refused while the other one is granted and the former is not inseparably connected with or necessarily depending on the other, in an appeal against the latter, the former relief cannot be granted in favour of the respondent by the appellate court exercising power under Rule 33 of Order 41.” 44. The Hon'ble Apex Court in Banarsi vs. Ram Phal (supra) also approved the view of Division Bench of Calcutta High Court in Jadunath Basak vs. Mritunjoy Sett ( AIR 1986 Cal. 416 ), wherein Division Bench drew a distinction between the respondents' right to challenge adverse finding without filing any appeal or cross objection and the respondents seeking to challenge a part of the decree itself without filing cross objections. The Division Bench held that the latter was not permissible. Para 20 of the Judgment reads as under:- “20. A Division Bench decision of the Calcutta High Court in Jadunath Basak vs. Mritunjoy Sett ( AIR 1986 Cal 416 ) may be cited as an illustration. The plaintiff filed a suit for declaration that the defendant had no right or authority to run the workshop with machines in the suit premises and for permanent injunction restraining the defendant from running the workshop. The trial Court granted a decree consisting of two reliefs: (i) the declaration as prayed for, and (ii) an injunction permanently restraining the defendant from running the workshop except with the terms of a valid permission and licence under Sections 436 and 437 of the Calcutta Municipal Act, 1951 from the Municipal Corporation. The defendant filed an appeal. The Division Bench held that in an appeal filed by the defendant, the plaintiff cannot challenge that part of the decree which granted conditional injunction without filing the cross-objection. The defendant filed an appeal. The Division Bench held that in an appeal filed by the defendant, the plaintiff cannot challenge that part of the decree which granted conditional injunction without filing the cross-objection. The Division Bench drew a distinction between the respondent's right to challenge an adverse finding without filing any appeal or cross-objection and the respondent seeking to challenge a part of the decree itself without filing the cross-objection. The Division Bench held that the latter was not permissible. We find ourselves in agreement with the view taken by the High Court of Calcutta.” 45. In Pralhad & Ors. vs. State of Maharashtra & Anr. ( 2010(10) SCC 458 ), the Hon'ble Apex Court referred and relied upon the judgment of Hon'ble Apex Court in Banarsi vs. Ram Phal (supra). Para 20 of the judgment reads as under:- “20. In Banarsi vs. Ramphal ( AIR 2003 SC 1989 ), this Court construing the provisions of Order 41 Rule 33 CPC held that this provision confers powers of the widest amplitude on the appellate court so as to do complete justice between the parties. This Court further held that such power is unfettered by considerations as to what is the subject-matter of the appeal or who has filed the appeal or whether the appeal is being dismissed, allowed or disposed of while modifying the judgments appealed against. The learned Judges held that one of the objects in conferring such power is to avoid inconsistency, inequity and inequality in granting reliefs and the overriding consideration is achieving the ends of justice. The learned Judges also held that the power can be exercised subject to three limitations: firstly, this power cannot be exercised to the prejudice of a person who is not a party before the court; secondly, this power cannot be exercised in favour of a claim which has been given up or lost; and thirdly, the power cannot be exercised when such part of the decree which has been permitted to become final by a party is reversed to the advantage of that party. (See SCC p.619, para 15). It has also been held by this Court in Samundra Devi vs. Narendra Kaur.: ( 2008 (9) SCC 100 ) (para 21) that this power under Order 41 Rule 33 of CPC cannot be exercised ignoring a legal interdict.” (emphasis supplied) 46. (See SCC p.619, para 15). It has also been held by this Court in Samundra Devi vs. Narendra Kaur.: ( 2008 (9) SCC 100 ) (para 21) that this power under Order 41 Rule 33 of CPC cannot be exercised ignoring a legal interdict.” (emphasis supplied) 46. So far as present case is concerned, the agreement (Ex.1) was executed by defendant No. 1. Defendant No. 2 was son and defendants Nos. 3 to 7 are grand sons, of defendant No. 1. Defendants Nos. 1 & 2 and 4 to 7 did not contest the suit. The defendant No.3 filed his written statement, but did not lead and evidence. Thus, defendants Nos. 1 to 7 had given up their claim. Even otherwise, the defendants Nos. 1 to 7 had already sold the property in dispute vide registered sale deed dated 16th/17th July, 1963 to defendant No. 8. Therefore, defendants Nos. 1 to 7 had no interest in the property thereafter. The registered sale deed dated 16/17.7.1963 has already been declared as bogus and fictitious and bad in law by trial court. The finding of trial court in this regard has also been affirmed by Single Bench. Therefore, power under Order 41 Rule 33 CPC by Single Bench should not have been exercised in respect of a claim given up or lost so as to revive it. Therefore, invoking of powers under Order 41 Rule 33 CPC, in absence of cross objections under Order 41 Rule 22 CPC, by Single Bench is contrary to law laid down by the Hon'ble Apex Court in Banarsi vs. Ram Phal (supra). The Hon'ble Apex Court held that the power of appellate court under Order 41 Rule 33 CPC is subject to three limitations, but Single Bench exercised its powers under Order 41 Rule 33 CPC, contrary to the ratio laid down by the Hon'ble Apex Court. 47. The disputed property is situated at a very prime location of Jaipur City i.e. on Mirza Ismail Road and infront of Government Hostel and its value at present is in Crores. The defendant No.8 has not opposed this appeal as he has not appeared despite service of notice. The defendant No.3 did not lead any evidence in the trial court after filing the written statement. He did not file any cross appeal before first appellate court i.e. Single Bench in respect of issues decided against him. The defendant No.8 has not opposed this appeal as he has not appeared despite service of notice. The defendant No.3 did not lead any evidence in the trial court after filing the written statement. He did not file any cross appeal before first appellate court i.e. Single Bench in respect of issues decided against him. In such circumstances, the finding of learned Single Judge in respect of Issue No.5 does not appear to be correct and the same is liable to be set aside and is hereby set aside and we decide Issue No. 5 in favour of plaintiff/appellant and hold that contract (Ex.1) is enforceable. 48. That apart, it is also relevant to mention that not only a sum of Rs. 1,74,500/- has been paid against total amount of Rs. 1,80,000/- but on 12th October, 1961 while receiving further payment of Rs. 20,000/-, the defendant No.1 also transferred the possession of the disputed property to plaintiff - Municipal Council, as part performance of the contract, which is clear from “Ex.10” document/letter dated 12.10.1961, written by defendant No.1, to plaintiff, which is reproduced as under:- DULICHAND HAMIRMAL GOLECHA Importers, Exporters, Jewellers, Manufacturers & Bankers. BANKERS Bhairon Ji Ka Rasta State Bank of India Johari Bazar, Bank of Baroda Ltd. J A I P U R(India) Ref. No. Dated 12-10-1961 To, The administrator Municipal Council Jaipur. Dear Sir, Today I am receiving Rs twenty thousand towards the sale price of Aloo Factory building as per contract dt. 29-10-60. I have so far received Rs 1,39,500/- excluding this above amount of Rs 20000/- I have received major portion of the sale price I hereby transfer the possession in question to Municipal Council as part performance of the contract. The Industries department is being requested to pay the rent of the premises to the Council from this date onward. As I am going out on pilgrimage the sale deed shall be got registered within a month or so otherwise the council will be at liberty to get the sale deed registered through court. Yours faithfully Sd/- (in Hindi) (Hamir Mal Golecha) Received Sd/- 2.12.60 49. From the agreement dated 29th October, 1960, it is clear that only a sum of Rs.30,000/- was required as advance against the total amount of Rs. 1,57,000/- Plus Rs. 23,000/- = Rs. Yours faithfully Sd/- (in Hindi) (Hamir Mal Golecha) Received Sd/- 2.12.60 49. From the agreement dated 29th October, 1960, it is clear that only a sum of Rs.30,000/- was required as advance against the total amount of Rs. 1,57,000/- Plus Rs. 23,000/- = Rs. 1,80,000/- and rest amount was to be paid at the time of registration of the sale deed. The plaintiff was not bound to pay the remaining amount, except initial advance amount of Rs. 30,000/-, on various dates as demanded by defendant No.1. But plaintiff was really interested in purchasing the land and plaintiff paid the remaining amount as demanded by defendant No.1 from time to time and total amount of Rs. 1,59,500, including amount of Rs. 20,000/- had been paid upto 12.10.1961. Therefore, defendant No.1 himself transferred the possession of the disputed property as part performance of the contract. In these circumstances, the trial court as well as Single Bench both committed an illegality in not decreeing the suit of the plaintiff for specific performance. 50. In Shrimant Shamrao Suryavanshi and Anr. vs. Pralhad Bhairoba Suryavanshi by Lrs. & Ors.' case (supra), the Hon'ble Apex Court while considering Section 53-A of the Transfer of Properties Act, 1882 with regard to part performance of contract of sale, held that law of limitation is applicable only to enforce remedy and not to plea in defence. Para 7 of the judgment reads as under:- “A perusal of Section 53-A shows that it does not forbid a defendant transferee from taking a plea in his defence to protect his possession over the suit property obtained in part performance of a contract even though the period of limitation for bringing a suit for specific performance has expired. It also does not expressly provide that a defendant transferee is not entitled to protect his possession over the suit property taken in part performance of the contract if the period of limitation to bring a suit for specific performance has expired. In absence of such a provision, we have to interpret the provisions of Section 53-A in a scientific manner. It means to lock into the legislative history and structure of the provisions of Section 53-A of the Act.” 51. In absence of such a provision, we have to interpret the provisions of Section 53-A in a scientific manner. It means to lock into the legislative history and structure of the provisions of Section 53-A of the Act.” 51. In MIG Cricket Club vs. Abhinav Sahakar Education Society's case (supra), the Hon'ble Apex Court observed that legal fiction tends to treat an imaginary state of affairs as real and entails the natural corollaries of that state of affairs. The development plan, existing prior to the coming into force of the Act, shall be deemed to be a sanctioned development plan. Para 21 of the judgment is as under:- “21. Making of a development plan requires consideration of various inputs and for that several bodies have to be consulted and various steps as provided in the Act are required to be taken. Naturally it would take some time. A town cannot exist without a development plan, otherwise it would lead to chaos. No development plan was made under the Act which came into force on 20.12.1966 and hence the legislature created a legal fiction by enacting Section 35 of the Act. It provided for assuming a fact i.e. existence of a development plan, which was, in fact, not made in accordance with the provisions of the Act. It has to be borne in mind that when a legal fiction is created it shall be given full effect. Generally legal fiction is created to advance public policy and preserve the rights of certain individuals and institutions. Legal fiction tends to treat an imaginary state of affairs as real and entails the natural corollaries of that state of affairs. Hence, the development plan, existing prior to the coming into force of the Act, shall be deemed to be a sanctioned development plan under Section 31(1) of the Act.” 52. The judgments referred by the learned counsel for the respondents in Dr. H.S. Rikhy & Ors. vs. The New Delhi Municipal Committee (supra) and Piloo Dhunjishaw Sidhwa vs. Municipal Corporation of The City of Poona (supra) are not applicable in the facts and circumstances of the present case. The judgments referred by the learned counsel for the respondents in Dr. H.S. Rikhy & Ors. vs. The New Delhi Municipal Committee (supra) and Piloo Dhunjishaw Sidhwa vs. Municipal Corporation of The City of Poona (supra) are not applicable in the facts and circumstances of the present case. In the present case, we have already taken a view that agreement (Ex.1) dated 29.10.1960 is in accordance with Sec. 80(7) of the Act of 1959, therefore, both the cases referred by the learned counsel for the respondents are distinguishable and are not applicable in the facts and circumstances of the present case. 53. The above discussion of facts and law shows that learned trial court as well as learned Single Judge both have held that agreement (Ex.1) is proved. The amount of Rs. 1,74,500/- has been paid to defendant No.1. The sale deed executed by defendants Nos.1 to 7 in favour of defendant No.8 is null, sham and fictitious. The contract (Ex. 1) was valid. The finding of Issue No.5 by trial court was in favour of plaintiff. Defendants Nos. 1,2 and 4 to 7 did not file any written statement and ex parte proceedings were drawn against them. Defendant No.3 did not led any evidence after filing the written statement and he did not take any plea or defence with regard to Section 80 of the Act in his written statement. Defendant No.8 had no right to contest the first appeal after finding of trial court in respect of Issue No. 4 and 8 and in absence of cross objections. The contract was valid as per Section 80(7) of the Act of 1959 and in these circumstances, there is no alternative except to decree the plaintiff's suit for specific performance. Learned trial court as well as learned Single Judge both committed an illegality in not decreeing the suit of the plaintiff for specific performance of contract. 54. In view of above discussion, we allow the appeal, set aside the finding of Single Bench in respect of Issue No. 5. Issue No.5 is also decided in favour of the plaintiff and it is held that contract (Ex.1) dated 29th October, 1960 is a valid contract and it is enforceable in law against defendants. The decree of specific performance is passed in favour of plaintiff/appellant in respect of disputed property. Issue No.5 is also decided in favour of the plaintiff and it is held that contract (Ex.1) dated 29th October, 1960 is a valid contract and it is enforceable in law against defendants. The decree of specific performance is passed in favour of plaintiff/appellant in respect of disputed property. The plaintiff/appellant is directed to pay or deposit the remaining amount of Rs. 5,500/- with interest at the rate of 6% per annum from the date of filing of suit i.e. 26.10.1963 till the date of deposit, in the concerned court within a period of two months. If the amount is deposited in court, then the same may be paid to the defendants. The defendants are directed to execute the sale deed in favour of plaintiff/appellant within a period of three months from today, failing which plaintiff/appellant will be entitled to get the sale deed executed and registered in respect of the disputed property through the trial court/executing court. 55. Parties are directed to bear their own costs. 56. Registry is directed to send the record of the trial court immediately.